Explainer: Is it illegal for Trump or Congress to name the impeachment
whistleblower?
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[November 08, 2019]
By Jan Wolfe
(Reuters) - U.S. President Donald Trump and
some Republican lawmakers are pushing for political and media allies to
reveal the name of the whistleblower who prompted an impeachment
inquiry.
"The whistleblower should be revealed because the whistleblower gave
false information," Trump told reporters on Sunday.
Rand Paul, a Republican senator from Kentucky, on Tuesday tweeted a link
to an article from a right-wing news outlet that claims to have
identified the whistleblower. On Wednesday, the president's son, Donald
Trump Jr., tweeted a link to an article including the same name.
Democrats, some Republicans, and members of the U.S. intelligence
community have strongly objected to the effort, calling it everything
from inappropriate to illegal.
Here is what U.S. law says about how whistleblowers in the intelligence
community should file complaints, and the punishments for retaliation
and identification.
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WHAT STEPS DID THE WHISTLEBLOWER TAKE?
On Aug. 12, the whistleblower lodged a complaint with an internal
government watchdog about a July 25 phone call between Trump and
Ukraine's new president Volodymyr Zelenskiy. During that call, Trump
pressed his Ukrainian counterpart to investigate a political rival,
former Vice President Joe Biden, and his son Hunter Biden.
The whistleblower filed the report with Intelligence Community Inspector
General Michael Atkinson, as required under the Intelligence Community
Whistleblower Protection Act of 1998 (ICWPA
https://www.govinfo.gov/content/pkg/
PLAW-105publ272/html/PLAW-105publ272.htm),
which lays out procedures for reporting allegations of fraud, waste, or
violations of law.
Atkinson determined the complaint was credible and involved an urgent
concern, and shared it with Acting Director of National Intelligence
Joseph Maguire on Aug. 26, as required under the ICWPA.
The ICWPA requires the director to report any complaint to Congressional
intelligence committees within seven days. Maguire consulted with the
White House, and the report was sent to prescribed members of Congress
on Sept. 25.
Maguire found the complaint did not meet the legal definition of "urgent
concern." But it has since prompted a House of Representatives
investigation into whether Trump committed "high crimes and
misdemeanors" warranting impeachment.
John Cohen, a former official in the U.S. Department of Homeland
Security, said the whistleblower followed the procedures laid out in the
ICWPA, and that much of the whistleblower's complaint has been
corroborated.
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WHAT DOES U.S. LAW SAY ABOUT REVEALING A WHISTLEBLOWER'S NAME?
There is only one provision in the ICWPA that deals specifically with
whistleblower anonymity, said Kel McClanahan, a national security lawyer
in Washington.
That provision says the inspector general should not disclose the
whistleblower's identity without their consent, unless the watchdog
determines that "such disclosure is unavoidable during the course of the
investigation."
Once the complaint is out of the inspector general's hands the law does
little to guarantee the whistleblower anonymity, said McClanahan, the
executive director of National Security Counselors, a public interest
law firm.
"It is presumed that people would want to not publicly expose a
whistleblower because of all the public policy reasons for not doing
so," said McClanahan.
Members of the House Permanent Select Committee on Intelligence who
reveal the whistleblower's identity could violate that committee's rules
and face censure from fellow lawmakers, McClanahan said. Censure is
largely symbolic, however, and does not remove a House member from
office.
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President Donald Trump holds a campaign rally in Monroe, Louisiana,
U.S., November 6, 2019. REUTERS/Leah Millis
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The whistleblower's lawyers said in a statement on Wednesday that
efforts to identify their client "will place that individual and their
family at risk of serious harm" and will deter future whistleblowers.
WHAT OTHER PROTECTIONS DOES U.S. LAW PROVIDE TO INTELLIGENCE
COMMUNITY WHISTLEBLOWERS?
A 2012 directive from former President Barack Obama, formally
put into law in 2014, supplemented the ICWPA to protect intelligence
community whistleblowers from some forms of retaliation, including
termination or security clearance revocation, if they follow rules
for making disclosures.
There are limits to the law's protections, however. Unlike other
whistleblowers in the federal government, intelligence community
whistleblowers are not permitted to file lawsuits over any perceived
retaliation. Instead, they must pursue relief through an internal
review process.
Notably, the 2014 law ultimately puts the president in charge of
enforcing the whistleblower protections.
Cohen, now a professor at Georgetown University, said the law was
primarily intended to protect whistleblowers from workplace
retaliation by colleagues and supervisors.
"It does not necessarily prevent disclosure of the identity of the
whistleblower, which may subject the individual to retaliation from
others," Cohen said.
WHAT SECURITY PROTECTIONS DOES THE U.S. FEDERAL GOVERNMENT PROVIDE A
INTELLIGENCE COMMUNITY EMPLOYEE WHO IS TARGETED FOR WHISTLEBLOWING?
Obama's directive gave intelligence community whistleblowers some
protections against workplace retaliation, but does not provide them
with security guards or similar protections.
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House members have considered "extreme measures" to protect the
whistleblower's identity in the event the individual testifies,
including disguising their face and voice, CNN reported.
Lawyers for the whistleblower say they have received death threats
after conservative media outlets have floated possible names.
IS THERE ARE ANY HISTORICAL PRECEDENT FOR THIS MOMENT?
Not really. Many government employees and contractors who have gone
public with allegations of wrongdoing went directly to the press.
"I do not think I have ever seen a president, his allies in Congress
and even his family work this hard to publicly disclose the name of
a whistleblower who has followed the law," said Cohen.
"Its disturbing - particularly in light of the fact that the
concerns raised by the whistleblower have for the most part been
validated by witnesses with first hand knowledge," Cohen said.
(This story corrects third paragraph to show Paul is from Kentucky,
not Kansas)
(Reporting by Jan Wolfe; Editing by Heather Timmons and Daniel
Wallis)
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